Anthony Gold’s Injury And Medical Claims Team Recover Damages Of More Than £70 Million

2020. Even naming this year as a standalone sentence invites mixed feelings of dread, of ill health, financial distress and family tensions.

At Anthony Gold the impact of the pandemic was no different, in that we still had to weather the sudden storm of the chaos brought about by Covid19. Across the entire firm there was a rapid need to restructure the working habits and routines of our staff, and simultaneously prioritise the needs of our clients.

Whilst adjusting to a new working lifestyle, based predominantly at home, our injury and medical claims team (IMC) also had to ensure that the standards of care and consideration provided to our clients remained unaffected. Our clients depend on us to provide the highest levels of commitment, pandemic or no pandemic, and I’m delighted to say that we did not drop that ball. The team, led by Jon Nicholson, successfully recovered damages for our clients of more than £70 million in 2020.

That remarkable level of success, however, represents more than just a number.

It’s a testament to the hard work and dedication of our team of lawyers, who regularly go above and beyond what is expected from a legal advisor.

Jenny Kennedy, who is listed as a “Hall of Fame” solicitor in The Legal 500, recovered more than £10.5 million for one client. Ian Peters regularly secured multi million-pound settlements for his clients throughout 2020 totalling more than £17 million. Department Head Jon Nicholson was successful in negotiating a settlement of over £7 million damages for a client injured by clinical negligence whilst a baby.

The Trustpilot reviews from our clients add another layer of positivity and recognition to this success, with comments such as “…nothing was too much trouble and he would be happy for us to contact him whenever we needed him. Thanks again for your caring, professional and honest support…”, of solicitor Samuel David. Another client, in his praise for an IMC partner, said
“…Adam Dyl was our allocated solicitor, and we have nothing but praise for him. He kept us regularly updated on our case. He was compassionate and always took the time to explain things to us properly, giving us time to think things through so we could make properly informed decisions”.

We can all agree that 2020 will be remembered by many as a year of hardship. And sadly the widescale disruption caused by Covid19 continues into 2021.

Some people, however, will have had exceptionally burdensome strains, including those injured in accidents through no fault of their own and whose lives changed beyond all recognition. It is addressing the day-to-day anxieties surrounding the recovery, rehabilitation and ongoing care of these people which dominates the IMC team’s routine, whether they are working to support them from an office, a loft, or their kitchen table.

I’m dealing with my parents’ estate and my estranged sibling is saying they want part of it. Will they be able to get anything?

The question of who can receive part of an estate will depend on whether or not the person who has passed away had a valid will in place at the time of the death.

Position if there is a valid will at the time of death

If the deceased had a valid will, the law dictates that the estate will be administered in line with their wishes, as set out in the will.  In limited circumstances, it will be possible for certain individuals to initiate legal proceedings, which if successful, can change the way that an estate is administered, including the individuals who will benefit from the estate.

The type of claim brought will depend on the circumstances involved, and the person attempting to bring the claim.  For an estranged child of the deceased, various claims may be available to them, including but not limited to challenging the validity of a will, or bringing a claim under the Inheritance (Provision for Family and Dependants) Act 1975. We have written about these types of claims, and the various criteria that any claimant must satisfy in previous blogs, such as here and here. However, if there is a will in place which does not leave anything to an estranged child, the child will not be able to receive anything from the estate, and against the wishes of other beneficiaries, without first bringing legal proceedings.

Position if there is no valid will at the time of death

If the deceased did not have a valid will at their time of death, the position of an estranged child will be quite different.  In the absence of a Will, the estate will be administered under the Intestacy Rules.  Under these Rules, the relatives of the deceased will be placed into a list of priority, to determine how the estate will be divided.  We have discussed these Rules in detail in our previous blog, found here.

The Rules do not consider the family relationships involved, and as such, no distinction will be made between a child who is estranged from the deceased and one who is not.  As such, if a parent has died without a will, and in the absence of a claim being brought under the Inheritance (Provision for Family and Dependents) Act 1975, the estate will be dealt with under the Intestacy Rules, and all children, whether estranged or not, will receive an equal portion of the estate.

The solicitors in our Contentious Probate department have experience in defending these types of claims on behalf of administrators, executors and beneficiaries, and would welcome the opportunity to discuss your situation with you further.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

My partner has died suddenly without a will. I’m scared that I will lose our house. Is there anything I can do?

When an individual dies without a valid Will, their estate will be dealt with under the Intestacy Rules. These Rules list the relatives of the deceased in an order of priority, to determine how the estate will be divided.  We have discussed the Intestacy Rules in more details in our previous blog, found here.

Under these Rules, a spouse or civil partner will automatically inherit £270,000 of the estate, and any personal chattels.  The remaining estate will then be divided in half, with half going to the surviving spouse of civil partner, and half divided equally among any living children.

These Rules do not apply in the same way for cohabiting partners, who under the Rules are not intitled to inherit any part of the estate.  There are however a number of other legal options available to partner’s that find themselves in this position.

Claim for beneficial ownership of the property

Firstly, it may be possible to make a claim for beneficial ownership of the property. Ownership of property is divided between legal ownership, being the individual named on the legal title and documents, and beneficial ownership, where individuals other than the legal owner have some right or interest in the property.

In a situation where an individual has lived in the property where the legal title was in the sole name of their deceased partner, it may be still possible to establish beneficial ownership through the following routes:

  • by showing that this was the common intention of shared ownership between the couple;
  • by showing that a promise of shared ownership was made by the legal owner to their partner, which the partner relied upon, to their detriment.

We have discussed these options further in our previous blog, found here.  If beneficial ownership is established, the legal ownership of the property would still be transferred to another, under the Intestacy Rules.  However, the legal owner would then be treated as holding the property on trust for all beneficial owners.

Claim against the estate under the Inheritance (Provision for Family and Dependents) Act 1975

Secondly under the provisions of the Inheritance Act 1975, an individual who falls within one of several categories, is able to bring a claim for a greater share of an estate, than they would have received under the Intestacy Rules, or the terms of a Will.

Under this Act a claim can be brought by a partner who was cohabiting with the deceased, for at least 2 years before their death.  The court will take various factors into consideration, which are detailed in our further blog, which can be found here.  If the Court makes an order in favour of an applicant, this can include provision of housing.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Fitness For Human Habitation Becomes Law

Just before Christmas, on 20 December 2018, the Homes (Fitness for Human Habitation) Bill received its Royal Assent becoming the Homes (Fitness for Human Habitation) Act 2018 (‘FFHH’ for short). This Act makes changes to the Landlord and Tenant Act 1985 to require that all landlords ensure that residential properties are put and kept in a condition fit for human habitation both before they are let and during a tenancy. This will apply to all social and private sector tenancies in England only.

Application

The Act comes into force three months after it has been passed, that is on 20 March 2019. However, it will only apply to tenancies made after that date so any tenancy entered into before 20 March (ie. signed by both parties and executed) will not be covered by the legislation initially even if the actual occupation begins after 20 March. Any tenancy that is newly granted, is renewed, or comes into existence as a periodic from a fixed term after 20 March will be covered by the legislation immediately. Tenancies which were periodic before 20 March 2019 will not be covered by the new provisions until 20 March 2020 so they effectively have 12 months grace. Tenancies that are continuing as a periodic tenancy from a fixed term tenancy by way of contract (so not arising as statutory periodic tenancies) are probably not covered as they will not have come into existence on the expiry of a fixed terms but by way of a continuation of the fixed term. The legislation will not affect tenancies which are on longer foxed terms starting before 20 March 2018 and carrying on for an extended period (such as 18 or 24 months) until those tenancies are renewed or become periodic.

FFHH is not the HHSRS

Contrary to careless scaremongering by some private landlord advisors and pressure groups the FFHH is not the HHSRS for tenants. The standard of fitness is to be assessed by the court using the 29 hazard profiles provided for by the HHSRS but not in the same way or to the same standard as the HHSRS. The HHSRS is a means of assessing notional risk in a property and improving it. The FFHH is a means of assessing fitness for a specific occupier. So FFHH is not assessed by considering whether there are category 1 or 2 hazards in a property (as the HHSRS is) and FFHH is assessed based on the person actually occupying the property (as opposed to HHSRS which is based on notional occupiers from high risk groups). That is not to say that an HHSRS assessment for a property will not also be relevant to its fitness. Clearly, a property with a large number of serious HHSRS hazards is unlikely to be fit. However, a property which has HHSRS hazards which are specific to the risk groups used for an HHSRS assessment may in fact be fit for the specific occupier in the property if they do not fall into one of those risk groups.

Exemptions

There are a few exemptions from the legislation. Tenancies that are for more then seven years are not covered by FFHH and are exempt from s11 repairing obligations as well. However, this cannot be cheated and a tenancy for seven years with a break clause at two years will be treated as a two year tenancy unless the break clause is tenant only.

Obligations

It is likely that the case law already applying to section 11 disrepair will also apply here and so a landlord will not be liable for fitness unless they have been put on notice of the lack of fitness. However, that cannot be guaranteed and so landlords should make sure that they are inspecting regularly and are taking reasonable steps to be aware of fitness issues. Landlords are not required to fix or resolve anything which requires superior landlord consent where the superior landlord is not giving that consent despite being asked. However, this does mean that superior landlord consent will need to be sought.

Breaches

As with disrepair now, where a fitness standard is not maintained the tenant will be able to seek damages and will be able to demand that the property is made fit.

Effects

For many private landlords this should not be a huge concern. Most private residential property is fit for habitation and if it is not it probably should be! There will be significant effects across the social sector which does have some very specific problems with fitness which they will need to resolve.

Anthony Gold Solicitors will be holding a seminar on the new FFHH standard in March. See our events page for more information.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Sanctions for failure to file a full costs budget

The recent judgment on Justyn James Page v RJC Restaurants Ltd [http://www.bailii.org/ew/cases/EWHC/QB/2018/2688.html] serves as timely reminder that as far compliance with court directions and rules are concerned, the courts are not prepared to indulge any party who fails to follow the rules to the letter.

In this case the parties had agreed some directions including a provision for a second CMC and also various phases in their respective costs budgets. In view of their agreement, the claimant’s solicitors had filed an “interim” costs budget which did not include estimated costs of trial preparation or trial.  This was on the understanding that further directions would be given at the second CMC and as such costs to be incurred thereafter could be budgeted for at that stage.  Both parties filed and served what they believed to be costs budgets and directions in compliance of the court order and the matter proceeded to a CCMC before Master Thornett.

It is fair to say that Master Thornett was less than impressed with the parties’ assumptions that their agreement of directions and some of the phases in the costs budgets would automatically be approved by the court. He concluded that filing of an “interim” costs budget which did not include the claimant’s estimated costs of trial preparation and trial was a failure to comply with CPR PD 3E. It was not a costs budget filed in the acceptable form.  Therefore, the sanction imposed by CPR r.3.14 applied and the claimant was only entitled to court fees. Master Thornett could not see why directions up to trial could not be determined at the CCMC. He refused to order another CMC and directions to trial were given.

Interestingly, he approved the defendant’s costs budget which had been budgeted to trial save for one or two outstanding items, and which was agreed by the claimant.

Understandably, and for obvious reasons, the claimant’s solicitors who had genuinely believed a second CMC would be permitted, appealed and also sought relief from sanctions under CPR r.3.9. Essentially, their main grounds for appeal was that CPR r.3.14 could only apply if the claimant had failed to file a costs budget.  This was not the position in this instance.

In what was a reasonably lengthy judgment, Walker J considered all the leading case authorities, including Mitchell v Newgroup Newspapers Ltd [2013] EWCA CIV1537 and Pittalis v Grant [1989] QB605. Following Denton v TH White Ltd [2014] EWCA Civ 906, he partially allowed the claimant’s appeal. Taking all the facts into consideration, his view was that CPR r.3.14 could only apply if the claimant had “failed to file a costs budget”. In this instance, although the filing of the interim costs budget excluding the trial preparation and trial costs was of moderate seriousness and significance, it was not the same as not filing a budget. The claimant’s solicitors had mistakenly believed those phases could be dealt with at a second CMC. As they had agreed some of the phases up to the first CCMC, it was appropriate to disapply the sanction to those parts of the agreed budget as dealt with up to those phases. However, he concluded due to the serious breach of the case management rules, the sanction must apply to the trial preparation and trial phases, leaving the solicitors entitled to court fees only in respect of those phases.

A harsh judgment and one which will no doubt put the claimant’s solicitors under enormous pressure to compromise the claim pre-trial but without under-settling and potentially, in conflict with their client.

This judgment illustrates that even with co-operation between the parties, there is no escaping the fact that one must never assume the court would approve any agreement that falls short of compliance of the rules and court orders. It is a trap which could catch the unwary. It seems the only way is to avoid breaching the case management rules is to prepare a full costs budget even in cases where there are uncertainties about the future, unless, of course, prior direction is obtained from the court.

 

Giles Peaker: Housing Lawyer of the Year 2018

Giles Peaker, Partner at Anthony Gold and Founder of Housing blog, Nearly Legal has been named as Housing Lawyer of the Year at the Legal Aid Lawyer Awards 2018.

The prestigious awards ceremony took place on 17 July 2018 at the 155 Bishopgate London with over 100 guest from across the industry. 

His nomination and acceptance speech have been widely praised which touched upon his long standing campaign for housing standards. He co-drafted a private members bill for Karen Buck MP on making homes fit for human habitation in 2015. The bill was unfortunately unsuccessful but in the wake of the Grenfell tragedy, Giles has worked with Ms Buck to amend and re-submit the bill, lobbying government and successfully gaining government support for this vital bill. This bill will be a ‘game-changer’ ensuring that tenants can take action in civil courts against both private landlords and social landlords in respect of any dangerous defects to their homes, even those defects which would not currently constitute ‘disrepair’.

On receiving the award, Giles adds ‘I am honoured to receive the Legal Aid Housing Lawyer award. Housing lawyers are a dedicated group, committed to securing safe, secure homes for their clients and I am proud to be recognised amongst them.’

 

The psychology of a scam

Do you think you have been involved in a scam and unsure on what to do next? David Wedgwood explains the psychology of a scam and tips to help stop a fraudulent investments.

This video has been recorded for Property Fraud Awareness Week 2017 in partnership with Property Tribes. If you think you have been a victim of scam please contact us on 0207 940 4000.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

 

The Residence Nil Rate Band – What It Means for You

On 6 April 2017, a new relief from inheritance tax was introduced. This is known as the “Residence Nil Rate Band” (“RNRB”).  This currently provides an additional nil rate band of £100,000.

Background

Under the previous rules prior to 6 April this year, on death the first £325,000 of an individual’s net estate was taxed at 0%.  This is known as the “nil rate band” (“NRB”).

Unless any other tax reliefs apply, the rest of the net estate (i.e. assets less allowable liabilities) is then taxed at 40%.

For couples who are married or, in a civil partnership, if the first to die has not used their NRB, the allowance may be transferred to a surviving spouse.  This effectively provides the surviving spouse with a tax allowance of up to £650,000. This typically occurs when the first to die leaves everything to the surviving spouse or civil partner as gifts between spouses and civil partners are entirely tax-free.  N.B. However, cohabitating couples do not have the benefit of the IHT spousal exemption.

The RNRB

This provides an additional allowance currently of a further £100,000 per person which exempts the first £100,000 of a home’s value from inheritance tax, on the basis it passes to a direct descendant. A direct descendant includes children, grandchildren (including step-children, adopted children and fostered children).  The additional tax amount which starts at £100,000 on 6 April 2017 increases by £25,000 per annum until 2020/21 when it reaches £175,000.  The NRB can then be applied to the balance of the value of the property and/or other assets in the estate.

What if I wish to downsize my property?

While normally in order to benefit from the RNRB, an individual must leave a residential property to their descendants, the new rules also allow individuals to claim the RNRB if they have previously owned a residential property, but no longer own it at the time of their death.  This allows people who have downsized or moved into a care home to benefit from the additional allowance up to the value of the residential property that they previously lived in.  These rules are complex and legal or, accountancy advice should be taken.

How does this work in practice?

Example 1

Ms Smith dies on 10 April 2017.  She is a single woman but has a daughter from a previous relationship. Her estate comprises her property worth £300,000 and cash and investments worth £100,000.  Her executors can claim the RNRB against the first £100,000 of her home which brings down the value of the remainder of her estate to £300,000.   No inheritance tax is due.

How would this work for a married couple?

Example 2

Mrs Jones dies on 10 April 2017 leaving her estate to her daughter.  Her husband had died in 2016 leaving his estate to his wife, which meant that no inheritance tax was due on his death. However, inevitably this means that the survivor’s estate is worth more and so on the death of Mrs Jones, her estate comprises her home worth £700,000 and investments worth £250,000.  The executors will be able to deduct both Mrs Jones’ RNRB £100,000 and NRB £325,000, as well as Mr Jones’s unused RNRB and NRB also £425,000. This means that 40% inheritance tax is only payable on £100,000 of the estate.

Are there any exclusions?

  1. Please note that the exemption for spouses and civil partners only applies specifically to those couples. Therefore, heterosexual, or same sex couples in a long-term relationship will not benefit from the tax-free gift to spouse or civil partner.
  1. The property must have been the residence of the deceased at some point and so this cannot be applied to buy-to-let properties.
  1. If an individual has more than one home, only one property can attract the RNRB.
  1. For estates that exceed £2 million (even if the actual property is worth less than this), the RNRB will be reduced by £1 for every £2 that the estate is valued over £2 million.
  1. Note that properties which have been left into a trust may not qualify for the relief and therefore we recommend that people review their existing arrangements.

Conclusion

These rules are somewhat arbitrary and complex. Many commentators wish that the chancellor had simply increased the NRB to £1m. Many people will lose out e.g. cohabiting couples, or siblings who co-own properties.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Whither CMP

Late on 27 March the government published the report of its review into Client Money Protection (CMP) for letting agents.

It is important to understand that this review predates the statutory obligation to have CMP as required by the Housing and Planning Act 2016. Therefore the report is to some extent cut across by that Act and some of its recommendations may now be irrelevant.

The review was undertaken by a very small group led by Baroness Hayter and Lord Palmer. While it purported to have direct input from the Private Rented Sector this input was primarily from the BPF who have little involvement or interest in the PRS beyond larger corporate landlords. Evidence was taken from other groups but this was relatively limited in scope.

The committee unsurprisingly recommends that CMP should be introduced. It noted that many landlords and tenants still assume that a letting agent is already regulated and so from that perspective the market already expects CMP. It was also noted that most landlords and agents are unaware of what they should do if their agent goes into receivership or liquidation and they are as likely to contact the police as any other source.

The committee’s primary recommendations are at odds with the current legislative requirement. The Housing and Planning Act (H&PA) simply allows for regulations to be made by which a local authority can enforce CMP through local penalties. The Committee recommended that the punishment for trading without CMP should be for the agent to be banned from trading altogether. This is not possible under the H&PA and would require further legislation.

The Committee also called for a light touch national register of letting agents. In practice this now exists in all of the devolved regions and would gain support from professional bodies in England. However, it would be likely to morph in to a register of landlords as well and so would be opposed by landlord bodies. Again this would require further legislation and so must be seen as something for the longer term.

The Real Future

There is little prospect of the suggestions made by the committee becoming law in the near future. Compulsory CMP has been introduced by H&PA and there is little doubt that it will be brought into force, probably in October 2017. The enforcement is likely to be through fines levies by local authority trading standards officers and these are likely to be relatively low. The reality is that the new report sets out some detail about how a CMP scheme under the H&PA might operate but is largely a set of requests that cannot be fulfilled without further primary legislation. That said, the government has committed to banning letting agent fees which will also require primary legislation and this is expected in 2018. Adding this in might turn that piece of legislation into a larger housing bill which would accomplish a larger set of changes.

ILOTT v MITSON: The outcome for charities

Ilott v Mitson [2017] UKSC 17 has been described as upholding the supremacy of testamentary freedom, and as being a win for charities.  What does this mean and is it true?

The facts of Ilott v Mitson have been described here and are briefly as follows:

Ms Ilott was the daughter of Melita Jackson.  Her father died before she was born.  Aged 17, Ms Ilott moved out of home to live with a boyfriend Mrs Jackson did not like, and that led to a lifetime estrangement.  Ms Ilott went on to marry her boyfriend and they had 5 children. Three attempts were made at reconciliation between mother and daughter, but none were successful.  Mrs Jackson did not support her daughter financially, and her daughter did not expect to inherit anything from her estate.  On her death, Mrs Jackson left everything to three animal charities which she had not previously had any connection with.

Ms Ilott and her family were not well off, and relied on state benefits for approximately 75% of their income.  Ms Ilott made a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision from the estate of her late mother.  She was initially awarded £50,000, but (after a series of appeals) this was increased by the Court of  Appeal to £143,000 (for her to buy her Housing Association house) and £20,000 for other financial needs.  The charities appealed to the Supreme Court to have this decision overturned.

The Supreme Court found that, on the facts, there were three orders which could have been made:

  1. The original order of £50,000 ;
  2. The Court of Appeal order of £143,000 plus £20,000 cash;
  3. Dismissal of the claim, so that Ms Ilott received nothing.

The Judges felt that any of those orders could be justified (although it should be noted that by the time the matter came before the Supreme Court, option 3 was not available to them).  They plumped for option 1 – overturning the decision of the Court of Appeal which had given a far higher award.

The reason that this is significant is because Mrs Jackson had chosen to leave her money to charities which she had not had a close association.  Charities in these circumstances are used to facing the argument that this is essentially a windfall, and that the family of the testator deserves greater consideration.  However, the Supreme Court emphasised that leaving money to charity is something which any testator is free to do.   Whilst charities cannot have an expectation of a bequest, they do rely on legacy income for their work and this should not be readily dismissed.  It can be easy to forget that the making an award to a Claimant under the Inheritance Act automatically reduces the amounts payable to the testators chosen beneficiaries, whether these are family, friends or charities.  This decision is likely to make it easier for charities to defend bequests left to them from Claimants, particularly where the Claimant has no strong moral claim.

When making an award under the Inheritance Act, the Court has to consider whether the will makes ‘reasonable financial provision’ for the applicant, and not whether the testator acted reasonably.  In this case, the testator does not appear to have acted reasonably – but that does not mean that reasonable financial provision was not made.  Ms Ilott was not financially dependent on her mother – she had lived independently for decades, and had not expected to inherit anything.

This judgment has re-emphasised the importance of testamentary freedom.  In England and Wales (unlike many other jurisdictions) there is no form of forced heirship – people can leave their estate entirely as they wish even if that means disinheriting their family entirely for totally unfair reasons.  Whilst the Inheritance Act provides a means for a small number of people to make claims against the estate, Ilott has reiterated that the circumstances in which they can do this are very limited and the testators wishes should be given serious consideration in any such case.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*